The Increasing Role of the Judiciary in Deciding the Issue of Same-Sex Marriage

There has been a plethora of activity in the past few weeks regarding state bans of same-sex marriage. Most notably, Federal Judges in the United States District Courts for both the District of Utah and the Northern District of Oklahoma have have struck down their respective states’ ban on same-sex marriages, inspiring hope in those fighting for marriage equality.1 While more and more state legislatures are willingly enacting legislation supporting same-sex marriages—most recently, Illinois and Hawaii—the debate over whether or not same-sex couples should be allowed to marry is increasingly being fought at the courts rather than the ballots. This shift from policy proposals to litigation is unsurprising as the more liberal states have already passed marriage equality laws while the more conservative states, who are much less likely to willingly pursue same-sex marriage rights, remain. This article will examine the evolving course of the same-sex marriage movement, its progress in both State and Federal courts, and its ultimate trajectory to the highest court in the land: the Supreme Court.

* Note: For those of you opposed to the institution of same-sex marriage, please understand that the analysis provided here is a legal one. I also urge you to read Justice Kennedy’s majority opinion in Windsor (Online at, Part III, page 17 – 30) and Judge Shelby’s decision in Kitchen (Online at, starting at page 7) to understand the legal and constitutional reasonings used to justify same-sex marriage, as opposed to moral or ethical ones which are irrelevant in this context.

I. The Decision in Windsor

In its 2012 term, the Supreme Court heard the case United States v Windsor, a high profile case concerning same-sex couples’ rights. However, there are many misconceptions about what this case actually involved and how the decision affects the debate on same-sex marriage today. While it did not comment on the constitutionality of the institution of same-sex marriage, it did set precedents on the equal protection rights of same-sex couples under the constitution which, as we will see, judges, such as the one in the Utah case, can use to support their decisions supporting the constitutionality of same-sex marriage, or, in the even more recent case in the 9th Circuit, establish precedent classifying sexual orientation as a classification subject to heightened scrutiny. (For a quick overview of what scrutiny means in the context of the law, click here.)

In Windsor, the surviving spouse of a same-sex couple, Edith Windsor, sued the federal government to allow her to claim the federal estate tax exemption for surviving spouses. When her spouse, Thea Spyer, died, she left her entire estate to Windsor. The State of New York recognized the marriage of these two women—who wed in Ontario, Canada in 2007—thus making them a lawfully married couple. However, at the time, a federal law, the Defense of Marriage Act (DOMA),2 barred recognition to same-sex couples, even those recognized in their own states. Thus, Windsor could not claim to be a surviving spouse under federal tax law and, therefore, faced a whopping $363,053 estate tax for the estate left to her—a tax that the surviving member of a heterosexual relationship would not have to incur. The Supreme Court eventually ruled in favor of Windsor, with Justice Kennedy—known for his history of supporting gay rights such as in his decision in the landmark Lawrence v Texas—writing an opinion that made several references to the equal protection rights and “dignity” that all couples, including gay ones, are afforded by the Fourteenth and Fifteenth Amendments.3 The Court concluded that DOMA violated the Fifth Amendment because it “place[d] same-sex couples in an unstable position of being in a second-tier marriage,” a differentiation that “deman[ed] the couple, whose moral and sexual choices the Constitution protects[.]”4 The Court also stated that because DOMA deviates from the long-standing tradition of States, rather than the federal government, determining what is and what is not a marriage, it is guitly of singling out a specific class of citizens and “operates to deprive same-sex couples of the benefits and responsibilities that come with the federal recognition of their marriages” with “strong evidence of … having the purpose and effect of disapproval of that class.”5

So, while the Court’s ruling in this case did strike down the federal Defense of Marriage Act, it did not, and, in fact, refused to hear a case that could have decided whether or not statewide bans of same-sex marriage are constitutional. What the Court did do, however, was decide that the federal government could not intrude upon states’ powers of governing marriages which, in their home states, are for all intents and purposes equally valid under the law, and that, by doing so, the government purposefully and unconstitutionally demeaned those couples.

II. Federal Courts

While the Supreme Court narrowly declined to decide a case that would have ended the debate over same-sex marriage for good,6 the lower federal courts have been busy hearing cases of their own using the little guidance given to them by the Supreme Court in Windsor. What makes this particularly interesting is that in Windsor, the Court did not choose to resolve a particularly glaring conflict in their opinion. The Court ruled both in favor of states rights to govern marriages and the right of same-sex couples to have the same dignity as opposite-sex couples under the Fifth Amendment, two opposing values. This leaves the lower courts with the responsibility of deciding which of these values will take precedent in the cases they hear. In particular, there have been two very important cases recently that have demonstrated what the impact of the Supreme Court’s decision in Windsor and the future of the constitutional battle over same-sex marriage could hold.

In the most widely-publicized case, Kitchen v Herbert in the Federal District Court of Utah, a Federal Judge, Robert J. Shelby, overturned the state’s constitutional ban on gay marriage.7 In this case, the court found that the value of preserving the dignity of same-sex couples was more important than the state’s right to govern marriage. The court reaches this conclusion by listing numerous Supreme Court cases—most notably Loving v Virginia which overturned a state law banning interracial marriages—which all stated that marriage was a universal human right that the government, even states, cannot intervene in.8 Judge Shelby went further to say that the Utah ban violated the equal protection rights of same-sex couples and applied heightened scrutiny to their sexual status.9 A similar decision was reached in a federal court in Oklahoma in which the court called the state’s ban “an arbitrary, irrational exclusion of just one class of Oklahoma citizens from a governmental benefit” based on “moral disapproval” with no other state interest being forwarded.10

The other important federal case was a Ninth Circuit Court of Appeals case, Smithkline Beecham Corporation v Abbott Laboratories, which used the Supreme Court’s decision in Windsor to justify subjecting sexual orientation to heightened scrutiny. In this case, a juror was sent away because he was gay for fear of his sexual orientation influencing the outcome of the trial. While the lawyers who sent him away may have believed that their reasoning for discriminating against the juror were well-founded, the Appeals Court found that sexual orientation should be subject to a higher level of scrutiny, meaning that any discrimination against someone based on their sexual orientation must be justified with an air-tight argument. Therefore, any time an action by the government, at any level, discriminates (adversely or otherwise) based on sexual orientation, it will now have to prove much more compellingly its purpose for doing so. Specifically, it must prove that there is a compelling government interest in doing so (such as public safety), that the act is narrowly tailored (meaning the government is not discriminating broadly based on some characteristic of a person such as race or, in this case, sexual orientation), and that the government is using the least restrictive means possible in achieving this interest. The court reasoned that the Supreme Court’s decision in Windsor “established a level of scrutiny for classifications based on sexual orientation that is unquestionably higher than rational basis review. In other words, Windsor requires that heightened scrutiny be applied to equal protection claims involving sexual orientation.”11 This decision by the court is a major step in elevating the need to protect homosexuals from government discrimination, and while this case had to do with a juror being sent away for being gay, this basis of strict scrutiny can easily be applied by the court to laws that ban same-sex marriages.

III. State Courts and Executives

It’s not only the federal courts that are striking down laws banning same-sex marriage. State courts are similarly ruling their state’s bans unconstitutional under their state constitutions. In September 2013, the New Jersey State Superior Court was the first court to base their decision to strike down the state’s refusal to legalize same-sex marriage on the Supreme Court’s decision in Windsor for similar reasons as the cases already mentioned. While litigation is undoubtedly the most common tactic used by those fighting to legalize same-sex marriage, some politicians in the Executive branches of various levels of government have seen the writing on the wall and are moving to stop enforcement of their anti-same-sex marriage laws. Recently, in Virginia, which elected a Democratic governor in the last election, the Attorney General has come out in opposition of his state’s ban on gay marriage and has stated that he refuses to defend the law, asking the federal court to invalidate it. So, even at the state level, most actions taken on behalf of the movement to legalize same-sex marriage are either judicial or administrative.

IV. Does the public have no control? Where do we go from here?

Why are unelected judges deciding such sensitive social issues? Why, for instance, can a judge in Utah rule that the state, a particularly socially conservative one at that, can’t choose not to recognize gay marriage? Or why can’t voters in California do the same through a popular vote? Judge Shelby from the Utah Federal Court summed it the best, stating,

The Constitution guarantees that all citizens have certain fundamental rights. These rights vest in every person over whom the Constitution has authority and, because they are so important, an individual’s fundamental rights “may not be submitted to vote; they depend on the outcome of no elections.” W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 638 (1943).12

When it comes to the issue of same-sex marriage, it is almost certain the remainder of the fight over its legalization will happen in courtrooms. Even so, the majority of states have already firmly staked their claims. “Since 2003, every other state has either legalized same-sex marriage or, like Utah, passed a constitutional amendment or other legislation to prohibit same-sex unions”.13 While the more liberal states have made sure to legalize same-sex marriage and will need no litigation to compel them to accept the inevitble, the conservative ones will need to be dragged kicking and screaming. While the future of same-sex marriage isn’t certain, the Supreme Court will almost undoubtedly have the final say within the next two terms and, based on their decision in Windsor, the many similar lower court interpretations of Windsor, and the vast public mandate urging the courts to rule in favor of legalization, there is little left to the imagination as to what the future will look like.


You’ve read enough. I’ve written enough. Let’s just stop here.

  1. Erik Eckholm, Federal Judge Rules That Same-Sex Marriage Is Legal in Utah, NY Times (NY Times Dec 20, 2013), online at (visited Jan 18, 2014); Erik Eckholm, Oklahoma’s Ban on Gay Marriage Is Unconstitutional, Judge Rules, NY Times (NY Times Jan 14, 2014), online at (visited Jan 18, 2014). []
  2. 28 USC §1783C. []
  3. “Here the State’s decision to give this class of persons the right to marry conferred upon them a dignity and status of immense importance.” United States v Windsor, 133 S.Ct. at 2697 (2013) (emphasis added). []
  4. Id at 2694. []
  5. Id; Id at 2698. []
  6. Hollingsworth v Perry, 133 S.Ct. 2652 (2013). []
  7. Erik Eckholm, Federal Judge Rules That Same-Sex Marriage Is Legal in Utah, NY Times (NY Times Dec 20, 2013), online at (visited Jan 18, 2014). []
  8. Kitchen v Herbert, Case No 2:13-cv-217, *20 (D Utah Dec 20, 2013) (“Utah Decision”). []
  9. Utah Decision at 31, 34. []
  10. Bishop v United States, Case No 04-cv-848-tck-tlw, *65 (ND Okla Jan 14, 2014) (“Oklahoma Decision”); Erik Eckholm, Oklahoma’s Ban on Gay Marriage Is Unconstitutional, Judge Rules, NY Times (NY Times Jan 14, 2014), online at (visited Jan 18, 2014). []
  11. Smithkline Beecham Corporation v Abbott Laboratories, Case No 11-17357, No 11-17373, *? (9th Cir Jan 21, 2014). []
  12. Utah Decision at *17. []
  13. Utah Decision at *9. []

Alexander is the founder of YOTUS and a Political Science & Economics Double-Major at the University of California, Los Angeles. He has written for the UCLA Undergraduate Law Journal and hopes to attend Law School after graduating.

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